August 26,1876, defendants in error, Cunningham & Hardee, as plaintiffs below, instituted this suit against William H. Lessing, plaintiff in error, in the district court of San Saba county, for the recovery of an alleged balance of §381 due on a contract for the sum of §925, for material furnished and work and labor in and about the building of a certain *234house for Lessing; and for the further sum of $45.34, for extra work in and about said house.
Petition alleged that a bill of particulars and a description of the lot on which the house was erected were filed and recorded and due notice thereof given, to fix and secure the mechanic’s lien under the statute. Act November 17, 1871; Pasch. Dig., art. 7112.
Lessing appeared and filed answers. On September 15, 1877, a jury having been waived, personal judgment against Lessing was rendered for the sum of $410, and the mechanic’s lien on the building and lot enforced and sale of the same ordered, the judgment reciting that from the evidence adduced, Cunningham & Hardee were entitled to such lien. The judgment ended with the following other recital: that “execution may issue according to law, on or after the expiration of one hundred days from the adjournment of the present term of this court, and not before. The above decree is entered by agreement of parties. ”
The legal effect of this recital was to make the judgment one by consent. Hutchinson v. Owen, 20 Tex., 287; Laird v. Thomas, 22 Tex., 276.
This ■ was a waiver of all errors except a fundamental error, which would go to the jurisdiction of the court — the latter being such error as could not be waived even by consent. Garner v. Burleson, 26 Tex., 348.
The only question, then, for our consideration is this: Did the court below have jurisdiction of the subject matter, it not being controverted that it had jurisdiction of the parties?
It is contended by Lessing, that, from the statements made in the petition, it is evident that the contract was one not to be performed within a year, and that to have been legal under the statute of frauds, it must have been in writing; and as the petition did not allege that the contract was filed and recorded, the lien under the statute *235was not fixed and secured; and as the district court did not have jurisdiction without the lien — the amount being less than $500,— it would follow that the court below did not have jurisdiction, and hence the judgment was a nullity.
In a suit upon a contract coming within the statute of frauds, it is not necessary to allege affirmatively that it was in writing. Whether in writing or not is a question of evidence, not of pleading, particularly when a special demurrer is not interposed. Cross v. Everts, 28 Tex., 531, and authorities there cited.
As, however, the bill of particulars required in cases of verbal contracts was filed, the presumption would arise that the contract was verbal, not in writing. The presumption, then, upon the question of pleading, that the contract must have been in writing, would not be indulged, in the absence of a statement of facts, to the extent to declare a consent decree void for the want of jurisdiction.
But, independently of this, it has been decided by this court, that although the pleadings do not set forth a cause of action which would on a contest have authorized the judgment rendered, yet that this, even as to a married woman, would be waived by reason of the judgment having been by consent. Laird v. Thomas, 22 Tex., 280.
The district court had jurisdiction over a case involving the question of a mechanic’s hen; the petition sought the enforcement of such hen; the judgment recites that evidence of the hen was shown upon the trial; the judgment was entered by consent, and thereby Lessing had the benefit of a stay of execution; and under the case as thus presented, it does not appear but that the court had jurisdiction, and the judgment below is accordingly affirmed.
Affirmed.
[Opinion delivered May 10, 1881.]